date

15 Jan y 1807 Facienda V. Abolition
15 Jan y 1807

Facienda

V. Abolition of fees

I venture /thus far/ to trouble your Lordship thus far, that it may /it may be seen/ your Lordship may see it is no hastily copied /adopted/ conception no fanatical conceit that is the cause /ground/ of the importance I attach to the utter abolition of fees in every office that has any thing to do with the administration of justice.

The true and only case, but it is a very extensive one in which salary is preferable to fees, and to such a degree that receipt of fees ought not to be permitted, is - where under the spur of the interest created by the fee it is in the power of the functionary /officer/ to add to the quantity of business done /appearing to be done/ in the execution of the functions /duties/ attached to the office.

But in this case stands almost every office that has any thing to do with the administration of justice.

Exception there seems no other than what has place in /is created by/ the business of arrestation. If the officer is paid alike whether the arrest be performed or no, the business being in its own nature attended with hazard as well as uneasiness of various kinds, he will /would/ neither execute it where /were/ a plausible pretence for the non-execution of it could be found.
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    1. Salaries instead of fees. │ │ I shall not trouble your Lordship in this place with the reasons /For the Reasons, I beg leave in this [...?] to refer your Lordship ot the Appendix/. In the mode of /for/ payment by fees In the practice of receiving fees your Lordship if I am not much mistaken will there find the chief if not the only cause of all the evils by which the demand has been created for the now proposed remedy.

    Not that the abolition of fees will /be of/ itself be sufficient for the care: but only that whatever other remedies the cure may be demand[?], this is one that can not be dispensed with.
  • Title: [15 Jan y 1807 Facienda V. Abolition]
    Description: 15 Jan y 1807

    Facienda

    V. Abolition of fees

    By reward, by hope the spirits are exhilarated /exalted/, the current of ideas quickened, powers of mind as well as body invigorated. By punishment, by fear spirits are deadened /depressed/, current of ideas slackened, powers enfeebled.

    Note that though the matter of salary be the matter of reward, yet strictly /properly/ speaking it is not by the force of reward, but by the force of punishment that in the case of salary without fees, the functionary is attached to his duty. The service that salary attaches to in the shape of reward, is not any special service rendered by the functionary in the exercise of his function, but the more general service, performed once for all - the service that consists in taking /charging/ upon him the obligation of rendering the particular service in which the exercise of his function consists /by the rendering of which the functions /several/ are exercised/.

    The motive by which the functionary is attached to his functions is of the nature of punishment: fear of discomfort /[...?]/ in whatsoever lesser or greater penalty may be apprehended to be attached in each particular instance to the non-exercise or improper exercise of the function in question - to the violation of the obligations attached to the office.
  • Title: [30 Dec 1806 Facienda Outline]
    Description: 30 Dec 1806

    Facienda

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    4. For the purpose of bringing about of this simultaneous appearance, this can not but be an ex parte application on the part of the Plaintiff: if there be any thing special in the application it is to the Judge or his deputy that he must address himself (always upon Oath). If the nature of his demand be such as to be capable of being expressed by the filling up of a blank form, to serve as a summons for compelling the simultaneous attendance of the defendant, this part of the business may be transacted by a subordinate officer, indeed[?] for instance the Registrar or Clerk: but even here to intitle him to impose upon the defendant the trouble of attendance, he must assert upon oath by the filling up of a blank form his own persuasion of the justice of his demand, and of the necessity of his taking this course in order to obtain the effect of it: and by submitting to a penalty, or by means of some other security, bind himself to appear at the time appointed for the meeting, and whether he appear or fail, to render in case of his not having justice on his side, other satisfaction to the defendant for the vexation and expense if any, attached to the forced attendance.

    5. If it be the wish of the plaintiff to have the attendance of the defendant in Court secured by arrest instead of summons his application must be made to the Judge, who before he grants his warrant for that purpose, must satisfy himself, as well as it is in his power to satisfy himself of the necessity of such infringement upon personal liberty, except in particular cases of necessity which it may be allowable to the plaintiff to employ himself or others in the arrestation of the defendant but upon no other terms than that of conveying him directly /taking him with him/ into the presence of the Judge.

    N.B. In Scotish judicature such examination is a preliminary to arrestation,if not in all civil cases in some. By English Judges, to get Plffs [...?], defendants liberty has for ages been sold for fees, to any body that will buy it -[...?] no questions asked.